Incorporation Doctrine

Question 1

Categories of Speech Content that Justify Govt. Restriction:

Answer 1

i. Incitement – listeners will react violently against 3Ps (Brandenburg)

ii. Fighting words – listeners will be violent against speaker
(Chaplinsky modified by Cohen)

iii. True threats (Elonis)

iv. Perjury (Alvarez)

v. Tortious Speech (defamation/libel/slander, invasion of privacy, IIED)
vi. Obscenity

vii. Child pornography (Miller)
viii. Porn distributed to minors (Ginsberg)
ix. Commercial speech

Question 2

Schenck Test (Not Current Law)

Answer 2

1. Do these words under these circumstances create a clear and
   present danger of a result that the law is allowed to forbid?

Question 3

Brandenburg Test

Answer 3

For Incitement:
1) The speech is “directed to inciting or producing imminent lawless action,” AND

2) The speech is “likely to incite or produce such action.”

Question 4

Chaplinsky

Answer 4

1. Jehovah’s witness called marshal a “G-d racketeer” and a “damned facist” because marshal did nothing when crowd beat him up and called him epithets. S. Ct. upheld conviction, concluding fighting words are not protected by First Amendment.
2. Fighting words test has since been modified by Cohen

Question 5

Cohen

Answer 5

Guy wearing “F- the Draft” jacket was arrested for willfully and
maliciously disturbing the peace. S. Ct. overturned conviction.

Fighting Words Test
1. Fighting words – words which likely tend to incite immediate
lawlessness

a. Govt. must prove these circumstances would likely lead to
immediate fighting (against speaker)
b. Most encounters that satisfy incitement and fighting words
will be face-to-face

Question 6

Watts

Answer 6

1. Man threatened President’s life
2. Political hyperbole must be distinguished from true threats

Question 7

Elonis

Answer 7

1. Man posted horrible rap lyrics and statement that it was crime to say he wanted to kill his ex
2. Open question: must gov’t prove subjective intent?
3. If Not defined in statute = S. Ct. will interpret statute to require intent

Question 8

Alvarez

Answer 8

1. Man lied about receiving Medal of Honor and was convicted under Cong. Act
2. S. Ct. held 1st Amendment protected lie
3. Proper remedy for a lie is to combat it with truth
   a. Policy reasons for not creating speech category for lying…

Question 9

Obscenity

Answer 9

1. Porn is protected speech unless it falls into the obscene category
2. All obscenity must be at least pornographic
   a. Legal definition differs from common usage
3. Porn – someone is supposed to find it erotic
   a. Doesn’t matter if you, subjectively, don’t find it erotic

Question 10

Miller Test (Obscenity)

Answer 10

(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’

(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

a. Value is determined by jury as instructed by expert
testimony in order to avoid community censorship of books
that have serious value
b. Prurient = causing/encouraging an excessive interest in sex

Question 11

Stanley

Answer 11

1. State not allowed to apply obscenity laws to materials viewed in
   home (even if Miller test is met)
2. Home = castle; you can view whatever obscene materials you want

Question 12

Ginsberg

Answer 12

1. Statute prohibiting sale of nude pics and pics harmful to minors
2. S. Ct. upheld conviction; state interest in banning sale to minors

Question 13

Brown v. Entertainment Merchants Ass’n

Answer 13

1. Law tried to ban video games based on violence
2. S. Ct. struck down law; refused to create new category in speech
   content list
3. Thus, Strict Scrutiny. applied and govt. failed narrowly tailored prong (no scientific evid. that violent video games lead to violent behavior)

Question 14

Paris Adult Theater I

Answer 14

1. Adult theater showing explicit movies to public
2. States have a legitimate interest in regulating commerce in obscene material and regulating exhibition of obscene material in places of public accommodation
3. Difference from Stanley: this was a commercial enterprise

Question 15

Commercial Speech

Answer 15

Speech that merely proposed commercial transaction (ads)

1. If speech contains additional info about topics like health, politics, public policy, the Court will make case-by-case determination if all speech will count as commercial speech (and can be regulated)

Question 16

Central Hudson Test

Answer 16

1. First, in order for the commercial speech to be considered protected speech under the First Amendment, the speech must concern lawful activity and the speech must not be misleading.
   (If this step is met and the commercial speech is considered speech, then the court will use steps 2-4 below to determine whether the government regulation is constitutional)
2. Alleged governmental interest in regulating the speech must be substantial
3. Regulation must directly advance the governmental interest asserted
4. Regulation narrowly tailored to interest

Question 17

Liquormart v. Rhode Island (Commercial Speech)

Answer 17

a. Law prohibited advertising price of alcohol, except in store
b. Drinking – lawful activity and not misleading
c. Govt. int. – temperance – no direct effect on temperance
(ad price price war lower $ more consumption)
d. Many alternatives (govt. ads, educ. programs, tax, laws reg.
alcohol sale)

Question 18

Tortious speech

Answer 18

someone feels victimized by another’s speech

Question 19

Sullivan test

Answer 19

1. Public figure P’s must prove:

a. Actual malice (D knew it was false/acted w/ reckless
disregard for truth)
b. No suing for organizational criticism (must show speech
named P)
c. P must prove damages (can’t just assume them)

Question 20

Gertz

Answer 20

a. Defamation – false statement of fact (not opinion)
b. Defamation under 1st Amend = Sullivan test
c. Gertz isn’t public figure so Sullivan test doesn’t apply to
him
i. Don’t want to call atty in high profile case “public
figure”

Question 21

Snyder v. Phelps

Answer 21

i. Westboro Baptist picketing at funeral
ii. No recovery for private figures when speech is
matter of public concern

Question 22

Expression

Answer 22

i. Communicating idea to someone (not unintentional expression)
ii. Govt. in these cases claims to be regulating only conduct, not expression

Question 23

Content-neutral laws

Answer 23

Less suspicious to courts (like murder law)

Ex. law forbidding spitting on graves of servicemen
a. Based on action only (applies even person is by himself)
b. People spit to be disrespectful and the law draws the line at
servicemen
c. This ex. is at the margins (gray area)

Question 24

O’Brien Test

Answer 24

Determining whether expressive conduct or symbolic speech merits First Amendment protection:

1 Law is otherwise constitutional (never an issue)
2 Important (substantial) govt int is furthered
3 Govt. Int./Law must be unrelated to suppression of
expression (must be about conduct, not expression)
4 Narrowly tailored

i. P must show govt. could accomplish goal in several
other ways

Always look at Prong 3 from the O’Brien Test
Does this regulation
Target acts that may or may not be expressive
Target expression only

Question 25

Texas v Johnson

Answer 25

Burning of a flag was protected expression under the First Amendment.

The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech.

Question 26

Public Forums and Content-Neutral Restrictions

Answer 26

Reg. doesn’t single out content, but only affects expression

Content-Neutral Restrictions (“Time, Place, Manner”)
Time, place and manner restrictions are content-neutral limitations imposed by the government on expressive activity.

Question 27

Ward Test

Answer 27

Content-neutral regulations that DO target expression

1. The regulation must be content neutral.
2. It must be narrowly tailored to serve a significant governmental interest.
3. It must leave open ample alternative channels for communicating the speaker’s message.

Question 28

Three Types of Speech Forums

Answer 28

Forum – govt. property where govt. has allowed at least
some non-govt. speakers

Non-forum – govt. property that has not been opened to
outside speech

Traditional public forum – streets, sidewalks, public parks
i. Must be preserved as places where people can communicate
ii. Content-based OR content-neutral regs must pass s.s. (narrowly tailored = least restrictive means)

Question 29

Lemon Test

Answer 29

Government Must Show:
1. Secular purpose
2. Primary effect neither advances nor inhibits religion
3. No excessive entanglement between government and religion